Regulator comments

At the close of each application round, each regulator (State & Territory EPAs) are provided with a list of intending applicants. The purpose of this is to allow regulators to raise any concerns they might have regarding an applicant. The policy below outlines how regulator comments are considered by SCP Australia and how they might impact the assessment process for an applicant seeking certification.

1. SCPA Definitions
In order to manage regulator comments, SCPA requires regulators to classify each of their comments under one of three key categories. Regulators are requested to cite examples of situations in support of their comments and to limit their comments to instances where one or more of the categories are applicable.

a. Professional misconduct
SCPA is only in a position to consider professional misconduct in relation to contaminated sites, and an applicant’s behaviour as a site contamination practitioner. Situations that amount to professional misconduct are those where:

the applicant has previously failed to adhere to ethical or professional standards they have subscribed to;

the applicant has received a formal written warning regarding a breach of (relevant) statute;

legal action for breach of statute has been taken against the applicant or the applicant’s organisation in relation to the applicant’s actions;

the applicant has been found to have intentionally mislead or misinformed end users, clients, regulatory authorities, planning authorities, stakeholders or SCPA; or

the applicant is found to be practising without appropriate licences or accreditation.

Failure to adhere and non-compliance are considered to have the same meaning in terms of this definition.

b. Professional conduct brought into question
Where an applicant’s professional conduct has been formally brought into question. This occurs in situations where it is reported that;

The applicant has been involved in a potential breach of statute where the applicant has received a ’show cause’ notice (as to the potential breach)

Any situation where the professional conduct of the practitioner in relation to a contaminated site is formally brought into question

c. Unsatisfactory professional conduct
Where an applicant has failed to reasonably maintain or adhere to competency standards required of a site contamination practitioner. This occurs in situations where it is reported that;

An applicant has previously failed to adhere to standard professional benchmarks such as the ASC NEPM;

An applicant has previously failed to adhere to regulator guidelines;

An applicant has previously failed to act on regulator advice regarding a contamination issue;

An applicant has previously produced poor quality reports or remediation outcomes.

The format requests regulators to cite specific examples where the applicant demonstrated behaviour applicable to the categories above and provide some documentary evidence in support. The documentary evidence might include letters of notification, or comments provided in writing.

2. Time limitations on reported examples
Examples reported to SCP Australia of applicant professional misconduct, professional conduct brought into question, and unsatisfactory professional conduct will only be considered if the examples occur within six years of the date SCP Australia receives reports of the professional misconduct, professional conduct brought into question or unsatisfactory professional conduct.

3. Personal identification of responsibility
In some instances examples of professional misconduct or unsatisfactory professional conduct may be referenced to an organisation the applicant is employed by, in which case, it must be shown in the report the applicant had direct responsibility for the instance of professional misconduct, conduct brought into question or unsatisfactory professional conduct through their role or position within the organisation.

4. Acceptance of regulator comments
Regulator comments will be addressed to the Executive Officer.
The Chief Assessor will review all regulator comments and supporting documents to determine whether any error has occurred in applying the SCPA definitions against the regulator comments and will make corrections as the Chief Assessor sees fit.
Comments that relate to any of the categories will be accepted for action. Comments that do not relate to the three categories will not be accepted for any further action unless the Chief Assessor sees fit.

5. The Applicant’s right of reply
Once regulator comments are accepted by the Chief Assessor, the Executive Officer will contact the applicant and provide them with the regulator comments categorised by reference to the SCP Australia definitions. The applicant is then invited to reply to the regulator comments in writing to the Executive Officer.

6. Processing of regulator comments
If the regulator comments include reference to professional misconduct, the application will be withdrawn from the assessment pool and the Chief Assessor and the Executive Officer will prepare recommendations for review by the NEC.

If regulator comments consist only of examples of unsatisfactory professional conduct and/or conduct brought into question, then the regulator comments and the applicant’s reply are shared with the relevant assessment panel.

7. NEC review of regulator comments
The NEC will consider recommendations prepared by the Chief Assessor and the Executive Officer and review regulator comments in relation to the requirements of the scheme, and in reference to the ethical and professional practice policy required of all joining the SCP Australia scheme. Where the reputation or integrity of the SCPA scheme has the potential to be brought into question due to an applicant who has a history of professional misconduct, the NEC reserves the right to decline an application from proceeding through to the assessment process. The NEC will review the regulator comments, with the applicant replies and decide whether to;

Proceed to normal assessment of the application in a timely manner or

Decline to proceed with the assessment of the application.

In electing to decline to proceed with assessment, the NEC must be satisfied that the applicant does not demonstrate requirements of the scheme and that there is a reasonable likelihood that grant of certification to the applicant will bring the certification scheme into disrepute.

Where an application proceeds to normal assessment after the NEC have reviewed the regulator comments, the reasons for the NEC decision will be recorded with the regulator comments and applicant’s reply and the comments, reasons and reply will be shared with the assessment panel reviewing the application.

8. Response to applicant
Where the NEC declines to proceed with the assessment, the reasons for the NEC decision will be recorded with the regulator comments and applicant’s reply and will be provided in writing to the applicant.